IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

PAUL D. CLAY, et al.,

Plaintiffs,

v.

GARY FREED, et al.,

Defendants.

Case No. 2:11-CV-0812

JUDGE PETER C. ECONOMUS

Magistrate Judge Norah M. King

OPINION AND ORDER

This matter is before the Court for consideration of two motions: Defendants Gary Freed 

and the Village of Syracuse, Ohio’s motion for summary judgment (doc. # 27); and Defendants 

William Gilkey, Andy Myers, Sheriff of Meigs County, and County of Meigs’ motion for 

summary judgment (doc. # 29). Both motions seek judgment as to all claims set forth in 

Plaintiffs’ Complaint. (Doc. # 2.) Because there is no genuine issue of any material fact

regarding any of Plaintiffs’ claims, Defendants’ motions are granted.

I. BACKGROUND

On August 25, 2010, Plaintiff Paul Clay started a fire on his property located in the 

Village of Syracuse, Ohio. Smoke from the fire was visible across the street where Syracuse 

Police Chief, Gary Freed, was standing with another village employee. Chief Freed walked over 

to the property and approached Clay. According to Clay, he met Chief Freed approximately 30 

feet away from the fire. (Clay Dep., page 32.) Chief Freed told Clay that it was against the law 

to conduct an open burn without a permit, but Clay continued to add trash to the fire. (Id., page 

29.) The two men dispute whether Chief Freed ask Clay for identification: the chief says he did, 

Clay says he did not. Chief Freed then left the property, but returned a short time later in his 

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police cruiser. (Id., page 41.) At this time, Chief Freed was joined by Meigs County Deputy 

Myers and Sergeant Gilkey, who had responded to Chief Freed’s call for back-up support. (Doc. 

# 29, page 5, citing to Freed Affidavit, Exh. A, Freed Police Report, ¶ 2.) The parties agree that 

Clay was visibly angry, particularly with Chief Fried, and that he was not compliant with the 

officers’ requests to calm down. (Clay Dep., page 29, 31, 43, 44.) Ultimately, Sergeant Gilkey 

informed Clay that he was under arrest for disorderly conduct. In response, Clay walked away 

from the officers and toward his trailer, ignoring several commands to stop. (Id. at pages 45, 46 

49.) Chief Freed deployed his TASER device, hitting Clay in his stomach area. Clay removed 

the probes from his coat, and he was tasered again. He fell to the ground, whereupon all the 

officers were eventually able to handcuff Clay with the use of a baton. Ultimately, Clay was 

charged with disorderly conduct and resisting arrest, and he was issued a citation for open 

burning. He was transported to the Southeast Regional Jail in Nelsonville, Ohio, and held 

overnight. (Doc. # 27, page 6; doc. # 31, page 3.)

In the underlying criminal action, Clay (as a criminal defendant) filed a motion to 

suppress in the Meigs County Court. After a hearing, in which Freed, Gilkey, and Myers

testified, the court held as follows: “The arrest made by the officers involved was without 

constitutional or statutory authority as the alleged criminal charge is a minor misdemeanor which 

does not permit arrest of the defendant.” (Doc. # 31-1, Judgment Entry.) As a result, the 

criminal charges were dismissed.

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Plaintiffs Paul Clay and Dora Clay1 bring four causes of action against Defendants Chief 

Freed; Village of Syracuse; Sergeant Gilkey; Deputy Myers; County of Meigs; and Sheriff of 

Meigs County: (1) “excessive force . . . in violation[ ] of the Plaintiff’s rights guaranteed by the 

Fourth, Fifth, and Fourteenth Amendments to the United States Constitution and Article I, 

Section 10, of the Ohio Constitution, and 42 U.S.C. Section 1981, 1983, and 1985”; (2) “false 

arrest . . . in violation of [Plaintiff’s] rights as secured under the Fourth and Fourteenth 

Amendments [to] the United States Constitution and Article I, Section 10, of the Ohio 

Constitution, and 42 U.S.C. Section 1981, 1983 and 1985”; (3) “false imprisonment . . . in 

violation of his rights as secured under the Fourth, Fourteenth Amendments of the United States 

Constitution and Article I, Section 10, of the Ohio Constitution and 42 U.S.C. Section 1981, 

1983 and 1985”; and (4) Plaintiff’s now-deceased wife’s claim for loss of consortium. Plaintiffs

also alleges, in his fifth cause of action, that both the Village of Syracuse and Meigs County 

demonstrated “deliberate indifference to the constitutional rights of its [sic] citizens and were the 

cause of the violations of Plaintiff’s constitutional rights as alleged herein.” Plaintiffs filed the 

action in state court, but Defendants removed it to this court based on Plaintiff’s federal claims.

II. STANDARD OF REVIEW

Summary judgment is required when the moving party shows, using evidence in the 

record, “that there is no genuine dispute as to any material fact and the movant is entitled to 

judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Fed. R. Civ. P. 56(c)(1). The party 

moving for summary judgment bears the burden of showing conclusively that no genuine issue 

 

1 According to the record, Plaintiff Dora Clay died in August, 2012. 

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of material fact exists. CenTra, Inc. v. Estrin, 538 F.3d 402, 412 (6th Cir. 2008). Once a moving 

party has met its burden of production, “its opponent must do more than simply show that there 

is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio 

Corp., 475 U.S. 574, 586 (1986). Reviewing the facts in the light most favorable to the 

nonmoving party, the court must ultimately determine “‘whether the evidence presents a 

sufficient disagreement to require submission to a jury or whether it is so onesided that one party 

must prevail as a matter of law.’” Vill. of Oakwood v. State Bank & Trust Co., 539 F.3d 373, 

377 (6th Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)); see 

Matsushita, 475 U.S. at 586.

III. LAW AND ANALYSIS

As a threshold matter, this Court notes that based on Plaintiff Clay’s response to 

Defendants’ motions for summary judgment, he is not pursuing many of the claims alleged in the 

Complaint. In his response, which provides only the barest recitation of facts, Clay states that 

the state court granted his motion to suppress and noted in its ruling: “The arrest was made 

without constitutional authority as the alleged criminal charge was a minor misdemeanor which 

does not permit the arrest of the defendant, and . . . [a] full custodial arrest for a minor 

misdemeanor violates Section 14, Article I, of the Ohio Constitution.” (Response, doc. # 31, 

page 3.) As this is the only statement in the response that can be construed as relating 

specifically to Clay’s claims, this Court infers that he concedes all of his claims except for his 

claims for false arrest and false imprisonment. See Dillery v. City of Sandusky, 398 F.3d 562, 

569 (6th Cir. 2005) (“It is well-established that issues adverted to in a perfunctory manner, 

unaccompanied by some effort at developed argumentation, are deemed waived.”) (internal 

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quotation marks omitted). Further, he does not address Defendants’ arguments regarding 

excessive force, loss of consortium, failure to train, the Fifth and Fourteenth Amendments, 42 

U.S.C. §§ 1981 and 1985, or proper party defendants. Therefore, those claims and parties are 

dismissed. This Court will focus exclusively on Clay’s 42 U.S.C. § 1983 claims of false arrest 

and false imprisonment against Defendants Freed, Gilkey, and Myers, as properly analyzed 

under the Fourth Amendment.

In order to prevail on a civil rights claim under 42 U.S.C. § 1983, a plaintiff “must 

establish that a person acting under color of state law deprived him of a right secured by the 

Constitution of laws of the United States.” Everson v. Leis, 556 F.3d 484, 493 (6th Cir. 2009) 

(citation omitted). Here, no one disputes that Defendants Freed, Gilkey, and Myers (hereinafter 

referred to as “Defendant Officers”) were acting under color of state law. The issue, then, is 

whether Defendant Officers deprived Clay of any rights under the United States Constitution.

To succeed on his false arrest claim, Clay must prove the police lacked probable cause 

when they arrested him. Fridley v. Horrighs, 291 F.3d 867 (6th Cir. 2002). For probable cause 

to exist, the “facts and circumstances within the officer’s knowledge [must be] sufficient to 

warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, 

that the suspect has committed, is committing or is about to commit an offense.” Crockett v. 

Cumberland Coll., 316 F.3d 571, 580 (6th Cir. 2003) (citation omitted); see also Illinois v. 

Gates, 462 U.S. 213, 244 n. 13 (1983) (noting that the establishment of probable cause requires 

only the probability of criminal action, not an actual showing of such activity). The probability 

of criminal activity is assessed under a reasonableness standard based on “an examination of all 

facts and circumstances within an officer’s knowledge at the time of the arrest.” Crockett, 316 

F.3d at 580 (quotation marks omitted).

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In their motions for summary judgment, Defendant Officers assert that their arrest of 

Clay was proper. First, they assert that because Chief Freed observed Clay’s adding garbage to 

the open fire, he was in clear violation of Ohio Revised Code § 3734.01. Although that offense 

is a minor misdemeanor for which a citation is to be issued, Chief Freed had the authority to 

arrest under R.C. § 2935.03(A)(1). (Doc. # 27, page 18; doc. # 29, page 16.) Further, Defendant 

Officers assert that they had authority to arrest Clay for his disorderly conduct, in violation of 

R.C. § 2917.11. (Doc. # 27, page 19; doc. # 29, page 17.) Under Ohio law, 

(A) No person shall recklessly cause inconvenience, annoyance, or 

alarm to another by doing any of the following:

(1) Engaging in fighting, in threatening harm to persons or 

property, or in violent or turbulent behavior;

(2) Making unreasonable noise or an offensively coarse utterance, 

gesture, or display or communicating unwarranted and grossly 

abusive language to any person;

(3) Insulting, taunting, or challenging another, under circumstances 

in which that conduct is likely to provoke a violent response;

( . . . )

(E)(1) Whoever violates this section is guilty of disorderly 

conduct. . . .

(3) Disorderly conduct is a misdemeanor of the fourth degree if 

any of the following applies:

(a) The offender persists in disorderly conduct after reasonable 

warning or request to desist. . . .

(c) The offense is committed in the presence of any law 

enforcement officer, firefighter, rescuer, medical person, 

emergency medical services person, or other authorized person 

who is engaged in the person’s duties at the scene of a fire, 

accident, disaster, riot, or emergency of any kind.

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(Ohio R.C. § 2917.11.) There is no genuine dispute of any material fact that Clay’s actions 

provided ample probable cause to arrest him for disorderly conduct. All of the evidence before 

the Court describes Clay’s actions that day as uncooperative, belligerent, and abusive.

Defendant Freed provides an affidavit, in which he avers that after he returned to the Clay 

property with the two sheriff’s officers, Clay “immediately started cussing at us.” (Doc. #27-1, 

Exh. F.) He continues:

Sergeant Gilkey then went up to Mr. Clay and advised him of his 

attitude and his persistent disorderly conduct. As Mr. Clay 

attempted to point at me, stating again that he wanted me off his 

property, he struck Sergeant Gilkey’s hand. Sergeant Gilkey 

advised Mr. Clay that he was under arrest. As Sergeant Gilkey 

attempted to arrest Mr. Clay, Mr. Clay spun around and began to 

retreat in a fast pace down the slight slope of yard that we were 

standing on, in order to avoid arrest.

(Id.) Sergeant Gilkey offers a similar description of the events, as noted in the “Ohio Uniform 

Incident Report” referenced in his motion:

On 8-25-10 Chief Freed of the Syracuse Police Department 

radioed our dispatch and requested back up on a disorderly male . . 

. . When we started to walk up to where Mr. Clay was he looked at 

Chief Freed and started yelling obscenities and told him to get off 

his property[.] I intervened and told him that Chief Freed had a 

valid reason for being on his property and we weren’t going 

anywhere, I told him that Freed needed to speak with him and that 

he needed to calm down, he continued to yell and curse after 

warnings and I told him that he was going to be arrested, he yelled 

and cursed more and I told him to turn around and put his hands 

behind his back, he spun around and jerked away from me and 

Deputy Myers and Chief Freed attempted to put his hands behind 

his back, he became more agitated and became very combative 

swinging his arms and jerking[. . . .]

(Doc. #29-3, page 9.) 

In his deposition testimony, Clay agrees that Sergeant Gilkey attempted to defuse the 

situation, that he was angry at Chief Freed—admitting that he was “pretty hot”—and that he 

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walked away from the officers after he was told to calm down. (Clay Dep., doc. # 28-1, pages 

44-46.) Notably, he never states—neither in his deposition testimony nor in his responsive 

brief—that he cooperated with the officers at any time. In his single response to both motions, 

Clay offers the barest recitation of the facts and offers unsubstantiated legal conclusions:

. . . [A]ll individual defendants, to wit: Freed, Myers, and Gilkey, 

all in uniform and on duty for either the Village of Syracuse, Ohio 

and/or Meigs County, Ohio and acting in concert and under color 

of State law as officers and at the direction and authority of those 

entities, “arrested” plaintiff Paul Clay, utilized TASER weapons 

against Paul Clay, utilized “attack batons” on Clay’s surgically 

repaired shoulder and arm, caused Clay to be compelled to the 

ground, handcuffed Clay behind his back, forcibly transported him 

to an adjoining county, confined him at that institution overnight 

and compelled him to formal trial proceedings. . . .

Paul Clay was generally proceeding at the time in a legally 

permissible manner on his own property. The actions of the 

defendants herein clearly violated Clay’s right to be free from State 

arrest and confinement.

(Response, pages 2-3.) 

Nowhere in the record is there any evidence to refute the proposition that the Defendant 

Officers had probable cause to arrest Clay for disorderly conduct and resisting arrest. Chief 

Freed observed an open fire on Clay’s property, an observation that Clay does not deny. Nor 

does Clay deny that he was uncooperative with and verbally abusive to Chief Freed. When 

Chief Freed returned to the property with Officers Gilkey and Myers, Clay continued his 

uncooperative and abusive behavior, despite Sergeant Gilkey’s concerted efforts to defuse the

situation and to calm down Clay. Nowhere does Clay aver that he cooperated with the officers in 

any way, at any time.

Even if Clay had alleged facts that, if true, might permit a jury to find that his 

constitutional rights had been violated, government officials who are performing discretionary 

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functions are entitled to qualified immunity. Rich v. City of Mayfield Heights, 955 F.2d 1092, 

1094 (6th Cir. 1992). “The entitlement is an immunity from suit rather than a mere defense to 

liability[.]” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Qualified immunity is a question of 

law for the court, Poe v. Haydon, 853 F.2d 418, 424 (6th Cir. 1988), so long as the legal question 

does not turn upon accepting one version of the facts over another, Sova v. City of Mount 

Pleasant, 142 F.3d 898, 903 (6th Cir. 1998). The Sixth Circuit has set for a three-part test for 

evaluating qualified immunity claims:

First, we determine whether a constitutional violation has 

occurred; second, we determine whether the right that was violated 

was a clearly established right of which a reasonable person would 

have known; finally, we determine whether the plaintiff has 

alleged sufficient facts, and supported the allegations by sufficient 

evidence, to indicate that what the official allegedly did was 

objectively unreasonable in light of the clearly established 

constitutional rights.

Williams v. Mehra, 186 F.3d 685, 691 (6th Cir. 1999). In qualified immunity cases, the plaintiff 

must show that the defendant is not entitled to the defense—that is plaintiff’s burden once the 

defense is asserted. Wysong v. City of Heath, 260 Fed. Appx. 848, 852 (6th Cir. 2008) (citing 

Wegener v. City of Covington, 933 F.2d 390, 392 (6th Cir. 1991)).

In the context of a false-arrest claim, the test is not whether probable cause existed, but 

rather, whether an officer, in light of the information he possessed, reasonably could have 

believed that probable cause existed. Under § 1983, “an arresting agent is entitled to qualified 

immunity if he or she could reasonably (even if erroneously) have believed that the arrest was 

lawful in light of clearly established law and the information possessed at the time by the

arresting agent.” Harris v. Bornhorst, 513 F.3d 503, 511 (6th Cir. 2008) (citation omitted). 

Given the information possessed by the officers—including Clay’s actions that they observed 

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just before arresting him—the officers reasonably believed they had probable cause to arrest him. 

Clay was defiant, abusive, and completely uncooperative. There is no evidence to the contrary. 

As a result, no constitutional violation occurred, and Clay alleges no fact—let alone sufficient 

facts—to indicate that any of the officer’s actions were objectively unreasonable. Therefore, 

Defendants Freed, Gilkey, and Myers are entitled to qualified immunity on Clay’s § 1983 false 

arrest and false imprisonment claims. 

Although Plaintiff Clay does not pursue his claims against the Village of Syracuse or 

Meigs County, even if he had, his claims against those entities would be unavailing, as well. See

Ewolski v. City of Brunswick, 287 F.3d 492, 516 (6th Cir. 2002) (citations omitted) (“Where, as 

here, a municipality's liability is alleged on the basis of the unconstitutional actions of its 

employees, it is necessary to show that the employees inflicted a constitutional harm.”); Tucker 

v. City of Richmond, Ky., 388 F.3d 216, 224 (6th Cir. 2004) (noting that where no constitutional 

violation occurred, there can be no municipal liability under § 1983).

Based on the uncontroverted facts before the Court, there was clearly probable cause for 

a lawful arrest of Plaintiff for disorderly conduct and resisting arrest. In addition, Defendants 

Freed, Gilkey, and Myers are entitled to qualified immunity on Plaintiff Clay’s § 1983 false 

arrest and false imprisonment claims. Therefore, summary judgment is granted in favor of 

Defendants on Clay’s § 1983 false arrest and false imprisonment claims. 

Finally, Plaintiffs have also alleged state law claims, including violation of the Ohio 

Constitution. However, since this Court will dismiss Plaintiffs’ federal claims, it declines to 

exercise jurisdiction over Plaintiff’s state law claims. See United Mine Workers of Am. v. Gibbs, 

383 U.S. 715, 726 (1966) (holding that if the federal claims supporting supplemental jurisdiction 

are dismissed prior to trial, the state claims should be dismissed as well); 28 U.S.C. § 1367(c); 

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Musson Theatrical, Inc. v. Federal Express Corp., 89 F.3d 1244, 1254-55 (6th Cir. 1996) 

(“When all federal claims are dismissed before trial, the balance of considerations usually will 

point to dismissing the state law claims . . .”). 

IV. CONCLUSION

For the reasons discussed above, the Court hereby GRANTS the Motion for Summary 

Judgment of Defendants Gary Freed and the Village of Syracuse (doc. # 27) and Defendants 

William Gilkey, Andy Myers, Sheriff of Meigs County, and County of Meigs (doc. # 29). The 

Court ORDERS that the Complaint (doc. # 2) be hereby DISMISSED. The Clerk of Court is 

directed to enter judgment in favor of Defendants.

IT IS SO ORDERED.

/s/ Peter C. Economus______________

PETER C. ECONOMUS

UNITED STATES DISTRICT JUDGE

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